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Most people use social media platforms to send messages to a large audience and to memorialize events through comments, pictures, and videos. Indeed, businesses push for more and longer exposure, better “SEO”, and more employee engagement with social media to promote the business on Facebook, Instragram, YouTube and other platforms. Snapchat, however, is unlike those social media options. Snapchat, widely-used particularly with younger workers, does not focus on memorializing messages, or sharing content, or increasing exposure. Rather, the posts/chats, videos, pictures sent via Snapchat automatically disappear in seconds, or minutes. This disappearing act can pose significant challenges in the workplace.

Content shared on Snapchat is meant to be momentary, not long-lasting. Snapchat content auto-disappears quickly. Users must quickly save/capture screenshots in order to retain the content. Due to this temporary nature of Snapchat content, Snapchat may be the platform of choice for bullies/harassers.

How Should Employers Handle This Auto-Destruction Of Potential Evidence?

When an employee posts harassing or bullying content on Facebook, an employer can discover and save such evidence without fear of any automatic deletion. With Snapchat, however, such evidence must be collected immediately by the recipient of the messages/photos/videos. If the recipient is able to do so, then the employee/employer certainly can use this evidence in its investigation into the complaints of harassment and can ask the sender to explain the content sent. Thus, best case scenario would be for recipients to know that they need to save a screenshot or otherwise preserve the content, that they know how to do so, and that they know to bring the complaint and saved content to their HR department and/or supervisor.

If however, the recipient does not know to preserve, or cannot preserve, the evidence, then the situation becomes a “he said, she said” situation (unless other evidence is available). The workplace investigator, or the employer, may ask the recipient to write down a detailed description of the content received. The investigator can still work with this information to perform the investigation and to question the parties. Most likely, the investigator will be able to make a few determinations about the credibility of the employees involved in the complaint.

Update Social Media and Related Policies

A repeated mantra of these posts is that employers must have state-of-the-art social media, anti-harassment, and other workplace policies. Now, as a new year approaches, it’s a great time to update Handbooks and Policies. This is so because it is likely that new employment laws applicable to the business have gone into effect since the Handbook was last revised, or will go into effect in 2017. The policies related to social media use, privacy, anti-harassment, permissible use of company property/resources, and more should be updated to address social media and workplace harassment issues.

Train Employees (not just Managers)

Policies are good, however, training regarding the policies is much better. All too often employees and employers roll-out a shiny new Handbook, only to forget about it a week later. Instead, employees, not just Managers, should really internalize the Handbook’s contents. A great way to assist in that process is to have a training session for employees. Employers can review the Handbook with the employees, and emphasize important points. Furthermore, employers can train employees as to what type of behavior is considered harassment and/or bullying, so that employees can strive to behave appropriately, and also so that employees will learn how to identify harassing behavior when they see or hear it.

Significantly, employers should also train employees on what to do once they have identified harassing (or other inappropriate behavior). For example, how should they save Snapchat posts/videos quickly so that the evidence can be preserved; to whom complaints should be directed, and best methods of reporting the behavior; and a description of how the company will handle a complaint once it has been received.

Managers, of course, should receive additional training on those topics as well. Managers should also receive training on what they should do if they receive a complaint from an employee and training on what additional resources are available to them to assist the target of the harassment/bullying as well as the alleged harasser. In many states, training of this type is required by state law.

Engage An Outside Investigator

It is wise for employers who receive a complaint of harassment to work with their HR professionals, and employment attorney to address the complaint. One key resource that should not be overlooked is an outside workplace investigator. Often the investigation into a workplace complaint is a key to potential liability. A third-party neutral workplace investigator is the best option for conducting a thorough, unbiased, and timely investigation. Employers should not always rely solely on an HR staff member, or even an outside HR consultant. In fact, some states, like California, recognize that only investigations performed by certain limited professionals (like attorneys and licensed private investigators) will be found lawful. So, the employer should seek out an appropriate resource, and not simply rely on their own (or an external) HR consultant for a lawful investigation.

Conclusion

Workplace complaints of any type should be taken seriously and evidence gathered quickly. The use of social media, and in particular, Snapchat, presents some challenges. Those challenges, however, can be overcome if an employer implements common sense and is diligent updating Handbooks, training employees and managers, and handle investigations properly when complaints do arise. Harassment and bullying may never go away, but employers can certainly take to steps to reduce and minimize these events and their impact on the workplace.

DISCLAIMER: Information provided on this website is not legal advice. It does not create an attorney-client relationship. Nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.

James Y. Wu is an expert on Social Media and Employment Law. For nearly 20 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation services when claims and lawsuits do arise. After practicing at some of the nation's leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. James earned his JD from Boston College Law School and both his BA and MA from Stanford University.

About James Wu

James Y. Wu is an expert on Social Media and Employment Law. For nearly 20 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation services when claims and lawsuits do arise. After practicing at some of the nation's leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. James earned his JD from Boston College Law School and both his BA and MA from Stanford University.

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Neal Schaffer is a leader in helping educate executives and professionals on social media as well as in implementing successful social media strategies for businesses. CEO of the social media agency PDCA Social, social media educator at Rutgers University and the Irish Management Institute, social media keynote speaker who has spoken at hundreds of events on four continents, and author of three social media books, Neal is a true innovator and influencer in the growing world of social media for business.